Human Rights

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Human Rights

In the twentieth century the international community embraced human rights as a way to promote justice for individuals in communities around the world. As the standards were promulgated , scholars raised questions about the origins of the idea, the conceptual boundaries of such rights, methods of enforcement, and the potential impact of human rights in the future. Although international human rights norms are widely accepted, their interpretation and enforcement remain controversial. Sometimes governmental officials have manipulated the standards to avoid being held accountable, claiming that human rights are incompatible with their own political traditions. The fundamental dilemma for human rights is that states play a dual role: They are expected to uphold human rights standards, but at the same time they are usually the perpetrators of gross violations of human rights.

Although the idea of human rights usually is traced to the European Enlightenment (1600–1790), some analysts contend that historical antecedents exist. They frequently make mention of the Greek playwright Sophocles' (c. 496 b.c.e.–406 b.c.e.) Antigone, the play in which the heroine is in a predicament: Antigone is caught between the positive law—the king's decree forbidding the burial of traitors, including her brother who fought against the city—and the higher law requiring that one always give relatives a decent burial. Most often commentators in the Western tradition derive human rights norms from antiquity, the Bible, and the Enlightenment.

Jurists point to other bodies of public international law to show that precursors of human rights exist. Other branches of international law generated humanitarian principles that are considered historical antecedents to twentieth-century human rights standards. For instance, the notion that torturing prisoners of war is strictly prohibited is one such norm. Other ancient ideas that are part of the customary law of war support the general idea that individuals, even if they are enemies, should be treated with dignity.

International humanitarian law is not the only field containing norms that are related to modern human rights norms. The duty of states to safeguard the rights of aliens is another; states must ensure that no harm comes to aliens while they reside within a state's borders, that no unjustified expropriation of property occurs, and the like. It often also is claimed that the standards set by the International Labor Organization should be considered the first human rights instruments.

sources of human rights

As jurists have dominated the field of human rights, they have tended to define human rights by referring to written instruments. The International Bill of Rights consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Civil and Political Rights. In addition to treaties, the other major source of human rights norms is customary international law, whose existence is demonstrated by state practice and opinio juris. State practice means that the behavior of states supports the norm, and opinio juris means that there is a sense of legal obligation on the part of the state not to infringe on the human right. Whereas treaties are binding only on states that choose to ratify them, customary law is, by definition, binding on all states. Many of the most significant human rights conventions, such as the Convention Against Genocide, the Convention Against Torture, and the Convention on the Rights of the Child represent the codification of customary law. Hence, some human rights are said to be both conventional and customary.

Some human rights norms are deemed so important that they are ius cogens, or peremptory norms. This status usually is construed to mean that they are "non-derogable," that is, can never be suspended. Such norms include the rights against genocide, piracy, slavery, and torture. These most basic rights are conceived as "super norms," which are not subject to negotiation. As a ius cogens norm is absolute in character, it can be superseded only by another ius cogens norm (though no example of one that would trump another appears in the scholarship on this subject). No matter what sort of crisis a government might face, officials may not derogate from the obligation to respect human rights that have the status of being ius cogens.

the question of the universality of human rights

Human rights scholars have grappled with the question of whether the legal standards promulgated by the United Nations (UN) reflect universal or Western (or Eurocentric) values. This debate is partly motivated by a desire to respond to the theory of cultural relativism , which holds that different societies have divergent value systems. The question is whether the existence of multiple moral codes poses a threat to the universality of international human rights standards. Ignoring the reality of diverse traditions, the vast majority of analysts have simply presumed the validity of universal human rights standards.

Some have taken a different approach. One scholar, Jack Donnelly (1982), conceded that human rights norms are derived from the European Enlightenment and contended that the concept of human rights simply is not found in Asian and African traditions. His response to the challenge of cultural relativism was to argue that the Western method of guaranteeing human dignity is the best, compared with approaches taken in other societies, and therefore should be adopted or imposed in other countries.

In contrast to Eurocentric interpretations of human rights, some scholars have advocated taking a comparative approach. One notable example is Raimundo Panikkar (1982), whose expertise in comparative religious ethics led him to use an innovative methodology. Rather than looking for the precise Western formulation of human rights in the English language, Panikkar searched for the homeomorphic equivalent to human rights in ethical systems across the globe to identify shared universal principles. Others scholars also have argued for conducting cross-cultural empirical research to find consensus that would support particular human rights standards. Although a comparative analysis of human rights might offer a way of identifying cross-cultural universals, little serious scholarship of this sort has been undertaken.

The debate about the universality of human rights has continued in other contexts. The question whether "Asian values" or Islamic law is incompatible with human rights represents a variation on this theme. Some scholars who come from non-Western countries contend that the human rights discourse should be challenged because of its colonial legacy or maintain that human rights advocates are missionaries attempting to impose their worldviews on others. Even if these scholars are correct in their supposition that human rights standards are associated with European political traditions, the discourse of human rights may prove to be useful to advocates around the world.

Scholarship on the role of human rights non-governmental organizations in transnational networks reveals that the international instruments empower local campaigns for human rights. Regardless of their origins, activists have found international human rights to be useful. Ultimately, the experience of activities attests to the capacity of human rights norms to empower marginalized groups despite their European origins.

new human rights

There is no question that new substantive human rights norms have appeared on the global horizon. After first-generation human rights (i.e., civil and political rights) were established, the debate over second-generation rights (i.e., economic, social, and cultural rights) began. Although there is said to be no implicit hierarchy among the two sets of human rights enumerated , many have inferred that first generation rights are more well accepted. Some Anglo-American scholars go so far as to deny that economic rights count as human rights mainly because it is unrealistic to expect states to provide for rights they cannot afford, and the assumption, perhaps unjustified, is that economic rights such as the right to shelter and the right to food are more costly than the right to freedom of speech or religion (negative rights).

Some have argued that the classifications are arbitrary because the determination of whether a right is political may hinge on whether it is found in a constitution. Furthermore, some rights, such as the right to form a trade union and the right of self-determination , are found on both lists.

Controversy also raged over whether third-generation rights, which include collective or group rights, are genuine human rights. The concern about such rights is that guaranteeing group rights may lead states to trample on individual rights. Another worry has been to avoid construing the right of self-determination in a way that supports a right of secession because international law has been understood as almost entirely opposed to an interpretation that would support changes in national boundaries.

In the 1990s women's rights were proclaimed as human rights. The impetus for this development was the World Conference on Women held in Beijing in 1995. It became clear that states should be held accountable for failing to protect women from human rights violations committed in private realms such as the family, religious institutions, and corporations. The main treaty for women, the Convention on the Elimination of All Forms of Discrimination Against Women, was found lacking because it did not specifically address violence against women, including forms of violence occurring in the private sphere. Although CEDAW was widely ratified, many states undercut its efficacy by attaching reservations, understandings, and declarations (RUDs) specifying that they would enforce the treaty only so far as was consistent with Islamic law.

Children's rights also were recognized in the 1990s, although Poland first proposed the idea of international legal protection for children's rights within the UN system in 1962. Following the usual pattern of drafting a nonbinding declaration followed by a treaty, the UN completed the Convention on the Rights of the Child in 1989. It quickly became one of the most widely ratified instruments. Despite this success, governments could not agree on the interpretation of childhood, and the definition of a child was not entirely resolved. A child is a person under the age of eighteen, but international law does not specify the point at which children's rights begin. It remains unclear whether the unborn child, or fetus, has human rights.

In 2005 a human rights treaty for persons with disabilities was in the process of being drafted. The campaign to create the Convention to Promote and Protect the Rights of Persons with Disabilities occurred because of a paradigm shift from the medical model—which treated disability as a condition inhering in the individual—to the sociopolitical model, which focuses on the failure of the state to make environmental adaptations to ensure the full participation of persons with disabilities in all aspects of social life. Accordingly, instead of having the World Health Organization control disability policy (e.g., the International Classification of Impairments, Disabilities, and Handicaps), disability came to be understood as a matter of human rights, and thus human rights institutions came into play. The new disability jurisprudence is reflected in the new treaty.

Some minority groups have launched campaigns for greater international protection. Gays and lesbians have succeeded in some major decisions (e.g., the Toonen decision of the Human Rights Committee and the Dudgeon decision of the European Court of Human Rights). The reasoning in these cases turned on the right of privacy rather than on equal protection. The next issue on the agenda for sexual minorities—that is, same-sex marriage—has raised the

question of whether same-sex couples are entitled to equal protection of the laws, a question that remains largely unresolved in most countries except Belgium, the Netherlands, and a few provinces in Canada, where same-sex marriage is legal. The debate about gay rights shows how various general norms, such as privacy, equality, and nondiscrimination, can be inadequate to the task of protecting members of some minority groups.

In 2005 some marginalized groups lacked their own treaties (e.g., gays and lesbians, religious minorities, and indigenous peoples). The social movements for new instruments have occurred with little coordination or realization of the tensions between treaties—for example, women's rights versus cultural rights. Additional rights, such as environmental human rights, the right to health, and cultural rights, also are being put forward. New human rights are always emerging.

enforcement mechanisms

In addition to some of the innovations in standard setting, there are new institutional mechanisms to enforce human rights throughout the world. Within the international community there are two major sets of institutions: charter-based bodies and treaty-based mechanisms. The UN Charter mandated the creation of the Human Rights Commission, which drafted the Universal Declaration of Human Rights. The Commission, the Subcommission on the Protection and Promotion of Human Rights, and the High Commissioner for Human Rights are referred to as the Charter-based institutions. As for the second type, each human rights treaty has its own committee of experts whose responsibility it is to enforce human rights in that convention.

The regional bodies include the Inter-American Commission and Court, the European Court of Human Rights and its appellate mechanism, the African Commission and Court on Human and Peoples Rights, and the revived Arab League for Human Rights; as of 2005 no Asian system existed. Although the regional bodies may have the advantage of rendering decisions in accordance with the values of the countries over which they have jurisdiction , the existence of multiple systems involves the disadvantage of increasing the likelihood that there will be competing interpretations of human rights.

Domestic courts increasingly have used international human rights law in their decision making. To the extent that governments of the world see fit to rely on international law either as the basis for their decisions or as an interpretive guide to clarify the scope of legal principles in their national constitutions, the standards will be enforceable. The willingness of national courts to reject the ancient doctrine of sovereign immunity so that it no longer will be a barrier to litigation bodes well for future attempts to hold leaders accountable. For example, when former Chilean dictator Augusto Pinochet (b. 1915) traveled to the United Kingdom in 1998 for medical treatment, he was arrested under a Spanish warrant to stand trial for human rights abuses.

The establishment of the International Criminal Court (ICC) is another significant development. The tribunal has the potential to enforce both human rights standards and humanitarian law. This institution provides a reason to be optimistic about the possibility not only of punishing officials who commit gross violations of human rights but also of deterring future misconduct. However, the reluctance of the U.S. government to join the ICC by ratifying the Rome Statute threatens to undermine the efficacy of this promising enforcement mechanism.

The trend toward using truth commissions to document state practice of human rights violations accompanied by impunity for leaders has raised questions about the possibility of holding leaders accountable. The phenomenon of state apologies for human rights violations, which usually substitute for restitution , is another development that some consider troubling. Although there is no reason why truth commissions and apologies should be used in lieu of punishment and restitution, this has been the practice in most countries. International scrutiny of governmental action may call into question the validity of both truth commissions and state apologies in their current forms.

The future of human rights depends not on legal instruments or institutional mechanisms but ultimately on the willingness of states to adhere to human rights standards themselves and to hold others accountable as well. Social movements play a crucial role in motivating governments to take human rights standards seriously by mobilizing shame and demonstrating widespread support for the values on which human rights are based.

bibliography

An-Na'im, Abdullahi A. "Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment." In Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi A. An-Na'im. Philadelphia: University of Pennsylvania Press, 1992.

Brooks, Roy L. When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: New York University Press, 1999.

Degener, Theresia. "Disabled Persons and Human Rights: The Legal Framework." In Human Rights and Disabled Persons, ed. Theresia Degener and Yolan Koster-Dreese. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

Donnelly, Jack. "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights." American Political Science Review 76 (1982):303–316.

Dudgeon v. United Kingdom. European Court of Human Rights, Series A, No. 45. September 23, 1981.

Hahn, Harlan. "The Political Implications of Disability Definitions and Data." In The Psychological and Social Impact of Disability, ed. Robert Marinelli and Arthur E. Dell Orto. New York: Springer, 1999.

Hersch, Jeanne. The Birthrite of Man. Paris: UNESCO, 1969.

Jayawickrama, Nihal. The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge, UK: Cambridge University Press, 2002.

Keck, Margaret, and Kathryn Sikkink. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press, 1998.

Laurent, Paul Gordon. The Evolution of International Human Rights: Visions Seen, 2nd ed. Philadelphia: University of Pennsylvania Press, 2003.

Lawrance, Benjamin N. "Refreshing Historical Accounts of Human Rights in Africa." Oriental Anthropologist 4 (2004):34–59.

Mutua, Makau. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press, 2002.

Panikkar, Raimundo. "Is the Notion of Human Rights a Western Concept?" Diogenes 120 (1982):75–102.

Rajagopal, Balakrishnan. International Law from Below: Development, Social Movements, and Third World Resistance. Cambridge, UK: Cambridge University Press, 2003.

Renteln, Alison Dundes. International Human Rights: Universalism Versus Relativism. Thousand Oaks, CA: Sage Publications, 1990.

Riles, Anneliese. The Network Inside Out. Ann Arbor: University of Michigan Press, 2000.

Toonen v. Australia. UN Human Rights Committee, Communication No. 488/1992 (adopted March 31, 1994).

Alison Dundes Renteln

Governments of the World: A Global Guide to Citizens' Rights and Responsibilities